DOI: 10.53136/97912218287332
Pagine: 16-29
Data di pubblicazione: Agosto 2026
Editore: Aracne
SSD:
IUS/13
This article examines the differentiated treatment that the European legal order, in both its Convention and European Union dimensions, affords to different forms of hate and discrimination, taking antisemitism as the principal analytical lens. It argues that the case law of the European Court of Human Rights has developed, around Holocaust denial and antisemitic speech, an exceptional protective framework centred on the immediate and almost automatic operation of Article 17 of the European Convention on Human Rights (echr), the abuse of rights clause, thereby excluding such forms of expression from the balancing exercise ordinarily required under Article 10 echr. By contrast, a comparative analysis of the Court’s jurisprudence on Islamophobia, anti-Roma hatred and racist speech reveals the continuing centrality of the proportionality assessment, with significant implications for the effectiveness of protection. The Grand Chamber’s judgment in Perinçek v. Switzerland, which expressly distinguished the denial of the Armenian genocide from Holocaust denial, provides the clearest illustration of the selective nature of this interpretative framework. The analysis then turns to European Union anti-discrimination law, where Directive 2000/43/ec, structured around categories of structural disadvantage capable of socio-economic assessment, produces a corresponding normative marginalisation of the Jewish community, thereby reversing the pattern of protection observed in the field of hate speech. The article concludes that the legitimacy of enhanced protection depends upon the formulation of explicit criteria capable of consistent application across comparable cases.