PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation I. ASPECTS OF SPEECH AND EXPRESSION DIRECTLY IMPLICATING ANTI-DISCRIMINATION LAW Speech and other forms of expression interact extensively and in a complex manner with the right to nondiscrimination. As discussed in section I.A.2(c) of part two of the present guide on forms of discrimination, in some cases, speech or expression can constitute a key element of prohibited conduct – ground-based harassment.1129 Many cases of ground-based harassment centre on speech or other forms of expression that have the effect of creating a hostile, degrading or intimidating environment for persons with a particular characteristic, status or identity. As the Committee on the Rights of Persons with Disabilities has noted, harassment is: “a form of discrimination when unwanted conduct related to disability or other prohibited grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. It can happen through actions or words that have the effect of perpetuating the difference and oppression of persons with disabilities”.1130 The Committee has recently put forward the view that harassment should be understood as including cyberbullying and cyberhate.1131 As concerns ground-based discrimination, any legal response would need to be understood within the material scope of discrimination law set out within section I.A.3 of part two. Ground-based harassment is only one aspect of the complex relationship between expression and the ban on discrimination. Expression can also provide the means by which other forms of discrimination occur – in the case of instruction to discriminate by those in a position of power, influence or authority. Both harassment and instruction to discriminate are forms of discrimination that must be prohibited by law, with the effect that speech or expression in certain contexts can be prohibited. In the standard case, such acts are treated within civil, administrative or labour law, and are not deemed criminal matters. However, instructions or orders to discriminate resulting in impacts with a high degree of harm may trigger criminal liability.1132 Moreover, speech and other forms of expression can play an important role in the adjudication of discrimination cases, including, in particular, as evidence of discriminatory motive or intent. Thus, for example, in its firstever finding of racial discrimination in a case concerning law enforcement, the European Court of Human Rights relied on witness statements that indicated that military personnel had uttered anti-Roma epithets just after shooting to death two Roma men. While a lower chamber of the Court initially held that that and other evidence was indicative of discrimination, the Court’s Grand Chamber held that there was discrimination in the procedure, but not as substantive matter, namely that the anti-Roma statements and other evidence should have triggered investigation by the national authorities into the possibility that racism or racial discrimination had infected the proceedings.1133 Finally, as explored in more detail in the next chapter of the present guide, the focus on incitement and hate speech has tended to obscure States’ positive obligations to combat stereotypes, stigma and prejudice and promote non-discrimination, equality, inclusion and diversity. 174 1129 See Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (d). The Committee on the Rights of Persons with Disabilities further notes that: “Particular attention should be paid to persons with disabilities living in segregated places, such as residential institutions, special schools or psychiatric hospitals, where this type of discrimination is more likely to occur and is by nature invisible, and so not likely to be punished. ‘Bullying’ and its online form, cyberbullying and cyberhate, also constitute particularly violent and harmful forms of hate crimes.” 1130 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (d). 1131 Ibid. 1132 See, for example, International Tribunal for the Former Yugoslavia, Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Judgment, 24 March 2016. 1133 European Court of Human Rights, Nachova and others v. Bulgaria, Applications Nos. 43577/98 and 43579/98, Judgment, 6 July 2005. For a similar use of open expression to ground a finding of discrimination in cases brought in the human rights treaty body system, see Committee on the Elimination of Racial Discrimination, Koptova v. Slovak Republic, communication No. 13/1998.