The Council of Europe has released a new Guide aimed at limiting the use of criminal law to restrict freedom of expression, warning against the growing trend of its disproportionate application. The Guide offers a detailed overview of the European Court of Human Rights’ case law, underlining the risks posed when criminal sanctions are used to suppress free speech and stifle plurality of opinions.

According to data from the Council of Europe’s Platform to promote the protection of journalism and the safety of journalists, there has been a sharp rise in the detention and imprisonment of journalists since 2019. The European Court of Human Rights has repeatedly found that measures limiting the freedom of expression as enshrined in article 10 of the European Convention on Human Rights, when excessive or unjustified, not only infringe upon individual rights but also pose serious dangers to a democratic society as a whole.

While acknowledging that some forms of speech – such as incitement to violence or hate speech – may justifiably be criminalised, the Guide reveals that applying criminal law to less harmful expressions can have a chilling effect. It risks silencing voices that are critical, dissenting, or simply unpopular voices that are essential in a healthy, pluralistic democracy.

The publication reiterates the Council of Europe’s role in supporting member states in meeting their obligation to uphold human rights and freedom of expression. This includes ensuring that individuals can participate freely in public debate without fear of legal reprisals.

Freedom of expression, supported by an independent and pluralist media, remains a cornerstone of democracy. The purpose of the new Guide is to help protect this fundamental right in an increasingly complex and challenging environment.

 Download the document - Limiting the Use of Criminal Law to Restrict Freedom of Expression – a Guide to Council of Europe Standards

The publication was produced by the Council of Europe Division for Cooperation on Freedom of Expression, as part of the project “Enhancing institutional capacities on freedom of expression and information in Bosnia and Herzegovina (EFEx)”, implemented by the Council of Europe and funded through the voluntary contribution of Sweden via the Swedish International Development Cooperation Agency (Sida).