Draft Law No. 13597 and Hate Speech

Bureau “We Are”
Human Rights Bureau "We Are!"

Draft Law

Draft Law No. 13597 and Hate Speech Regulation in Ukraine

Assessment of compatibility with the ECHR, ECtHR case law and Council of Europe standards

This is a machine translation from Ukrainian.

Author: Volodymyr Kosenko, Director, NGO Bureau “We Are”

Berezan, 2026 · For expert discussion

This is not a political assessment of the legislative initiative

4

sections

11

pages of analysis

CM/Rec(2022)16

Council of Europe Committee of Ministers Recommendation on combating hate speech

Subject of analysisThe draft law proposes administrative liability for non-violent forms of discrimination and criminal liability for public calls to violence motivated by intolerance.

Sources & Legal Force

Council of Europe framework

Binding

ECtHR case lawBinding on ECHR member states; shapes hate-speech standards through the Article 10 test

Soft law

Recommendation CM/Rec(2022)16Council of Europe Committee of Ministers recommendation on combating hate speech; differentiated liability by severity threshold

Soft law

ECRI GPR No. 15General Policy Recommendation: definition, protected characteristics (including SOGIESC), assessment factors

“What matters decisively are the context, content and consequences of the expression, not merely whether it is offensive or provocative.” — ECRI GPR No. 15, para. 11

EU Law

Relevant for harmonisation with the EU acquis

Framework Decision 2008/913/JHAMinimum standards for criminalising racism and xenophobia; a reference point for Ukraine in the EU context

Digital Services Act (DSA)Platform obligations for responding to hate speech in the digital environment

AVMS Directive 2010/13/EURequirements for audiovisual media services on countering hate speech

There is no unified definition of “hate speech” in binding treaties. The key issue is the effectiveness of the protection mechanism.

Section 1

What is “hate speech”?

Expressions in various forms, or justification of such forms, that incite, promote, spread or justify violence, hatred or discrimination against a person or group because of real or attributed characteristics: race, language, religion, age, disability, sex, gender identity and sexual orientation, etc. — CM/Rec(2022)16 + ECRI GPR No. 15

Forms of expression

Spoken and written language, images, symbols, audiovisual content, and conduct with communicative meaning where it is intended to convey an idea or message.

Context is decisive

Offensive or provocative content alone is not sufficient grounds for legal intervention. Context, content and consequences of the expression must be assessed.

Not every case is an offence

Not every discriminatory expression automatically falls outside Article 10 ECHR protection. Assessment must be individual and context-specific.

Important: states are not obliged to create a separate legislative category of “hate speech”. What matters is the existence of an effective mechanism for responding to serious forms of incitement.

Article 10 ECHR

Three-part test for freedom of expression

1

Prescribed by law

Interference must be based on a legal norm meeting the requirements of quality and foreseeability: the norm must be accessible, clear and enable a person to foresee the consequences of their actions.

2

Legitimate aim

Interference must pursue one of the aims expressly listed in Article 10(2) ECHR: protection of reputation or rights of others, public order, national security, etc.

3

Necessary in a democratic society

It must respond to a pressing social need and be proportionate to the aim pursued. The ECtHR assesses whether domestic authorities provided relevant and sufficient reasons.

Section 1.4

Severity threshold and differentiated liability — CM/Rec(2022)16

Criminal liability

Most serious formsCalls to violence; real risk of violence; serious incitement to discrimination. The ultima ratio principle applies — only as a last resort.

Criminal Code

Civil / administrative liability

Less serious formsDiscriminatory expressions that do not reach the criminal threshold. Measures should be proportionate to the specific manifestation and its scale.

Administrative Code · Civil law

Non-punitive tools

Below the offence thresholdPlatform self-regulation, counter-narratives, media literacy and educational measures. A preventive approach.

Self-regulation · Education

Severity assessment factors · ECtHR / Rabat Plan of Action

Context Speaker status Intent Content and form Extent of dissemination Likelihood of harm

Section 1.5

Hate speech ≠ hate crime — OSCE/ODIHR

Hate Speech

May constitute a standalone offence when the relevant severity threshold is reached

May precede a hate crime or serve as evidence of bias motive

Does not cover every crime committed with discriminatory motives

The object of regulation is expression (a form of communication)

Hate Crime

Two elements: (1) commission of a criminal offence + (2) presence of a bias motive

Implemented as a separate offence or an aggravating circumstance at sentencing

Bias motive may be proven, among other things, through hateful expressions

Relationship between the concepts

→Hate speech may escalate into a hate crime without an adequate response

→Under Article 67 of the Criminal Code of Ukraine, racial, national and religious hostility are aggravating motives, but SOGIESC is absent

→OSCE/ODIHR: systematic collection of disaggregated statistics is necessary for an effective response

Section 1.6

Positive State Obligations — ECtHR

Effective response mechanisms

States must ensure effective responses to serious manifestations of incitement to hatred against vulnerable groups.

Effective investigation

Offences motivated by bias require effective investigation that takes discriminatory motivation into account.

Balancing rights

A balance must be maintained between protection of persons affected by discrimination and guarantees of freedom of expression and religion.

There is no obligation to create a separate legal category of “hate speech”What matters is the effectiveness of the mechanism and its compliance with legality, legal certainty and proportionality.

ECtHR case law / ECtHR case law

Identoba v. Georgia (2015)Positive obligations to protect LGBTIQ+ people from violence during public assemblies

Beizaras v. Lithuania (2020)Refusal to open proceedings over hateful comments targeting LGBTIQ+ people = ECHR violation

Budinova v. Bulgaria (2021)Failure to consider discriminatory motive = breach of positive obligations

Section 2

Current national legal framework

Anti-discrimination law

Law “On Principles of Preventing and Combating Discrimination” (5207-17)Prohibits discrimination and defines incitement and harassment as its forms. It is a framework act without an independent sanctions mechanism.

Framework

Criminal liability

Criminal Code Article 161Intentional acts aimed at inciting hostility. Exhaustive list of grounds without SOGIESC. Direct intent plus specific purpose.

Limited

Administrative level

Code of Administrative OffencesContains no separate offence for discriminatory expressions or incitement to discrimination. There is no intermediate level between civil and criminal liability.

Gap

Aggravating circumstances

Criminal Code Article 67Motives of racial, national or religious hostility are aggravating circumstances. SOGIESC is absent, so crimes with homophobic motives are not qualified as bias-motivated.

Incomplete

The current model combines framework norms with criminal provisions of limited application, the absence of an administrative mechanism and incomplete coverage of bias motives.

Section 2.2

Criminal Code Article 161: analysis

Disposition (part 1)“Intentional acts aimed at inciting national, racial or religious hostility and hatred…” — an exhaustive list of grounds.

SOGIESC is absent from Article 161(1)Public incitement to hatred against persons on SOGIESC grounds is not directly criminalised within the “incitement of hostility” limb.

Open formula “other grounds”Applies only to direct or indirect restriction of rights, not to incitement of hostility.

Consistent with the ultima ratio principleThe requirement of direct intent and specific purpose limits application to the most pronounced forms of incitement.

Implications

Normative asymmetry of protection

LGBTIQ+ people are systematically excluded from criminal-law protection against the most dangerous forms of incitement, which may breach the principle of non-discrimination.

Article 67: homophobic motive

Crimes involving homophobic or transphobic bias cannot be qualified with an aggravating motive — a structural gap.

Council of Europe standards: CM/Rec(2022)16 and ECRI explicitly include SOGIESC in the list of protected characteristics. The current wording of Article 161 requires additional assessment regarding equal protection.

Sections 2.3–2.5

Structural gaps in the existing framework

Administrative levelThe Code of Administrative Offences does not provide liability for discriminatory expressions

There is no intermediate level between civil litigation and criminal prosecution

Less serious manifestations of hate speech remain without a proportionate response

Aggravating circumstancesArticle 67 of the Criminal Code does not include SOGIESC among the listed motives

Crimes with homophobic / transphobic motives are not qualified as bias-motivated

Normative asymmetry in protecting different groups; divergence from the OSCE/ODIHR approach

Civil protectionInitiative lies with the affected person, with financial costs and the need to prove individual harm

Difficult to apply where expressions target a group as a whole

Raises effectiveness concerns under Article 13 ECHR (right to an effective remedy)

Compliance with international standards is determined not by the formal existence of a “hate speech” category, but by the practical effectiveness, legal certainty and proportionality of responses across different levels of severity.

Section 3

Draft Law No. 13597: what does it propose?

Administrative liability

For forms of discrimination not involving violence or threats of violence
Drawing up protocols is the exclusive competence of authorised Ombudsperson staff
Limitation period: 3 months (risk to practical effectiveness)

Criminal liability

For public calls to violence motivated by intolerance against a person or group
The list of protected characteristics is expanded to include SOGIESC
The seriousness threshold for criminalisation is not formulated clearly enough

Conceptual alignment

A multi-level liability system (administrative plus criminal) broadly aligns with the Council of Europe approach and Framework Decision 2008/913/JHA, which envisage criminalisation of the most serious forms and less severe measures for other manifestations.

What determines real compliance

The decisive factors are the quality of legislative wording and the procedural effectiveness of mechanisms, not merely conceptual alignment with the Council of Europe model.

In its current wording, the draft law partly aligns with the Council of Europe conceptual model. The key issues are the practical effectiveness of the administrative mechanism, the clarity of the criminalisation threshold and the definition of “intolerance”.

Sections 3.2–3.3 / Issues

Three key issues in the draft law

Issue 01

Procedural effectiveness

A 3-month limitation period for administrative liability plus the Ombudsperson’s exclusive competence over protocols create a risk that some cases will not reach merits review because of institutional and time constraints, rather than lack of grounds.

↗ Risk under Article 13 ECHR

Issue 02

Criminalisation threshold

Criminalization threshold

Criminal-law provisions lack sufficiently clear seriousness criteria to distinguish them from expressions protected by Article 10 ECHR. This creates a risk of disproportionate interference with freedom of expression and overly broad interpretation.

↗ Risk under Article 10 ECHR

Issue 03

Definition of “intolerance”

Definition of "intolerance"

The proposed definition — “open, biased, negative attitude” — excludes hidden intolerance through the requirement of “openness”, leaving fertile ground for structural discrimination and latent hate crime. “Negative attitude” does not cover denial of equal dignity.

↗ Narrower than Council of Europe standards

Section 3.3 / Detail

Definition of “intolerance”: comparative analysis
"Intolerance" definition: comparative analysis

Draft Law No. 13597

“Open, biased, negative attitude toward a person and/or group of persons distinguished by such characteristics…”

The requirement of “openness” excludes hidden intolerance

“Negative attitude” does not capture denial of equal dignity

Structural / institutional intolerance remains outside the definition

Council of Europe / ECtHR approach

Intolerance is a psychological disposition, emotional state or lack of respect that does not necessarily manifest openly and is often hidden.

Covers hidden bias and unconscious discrimination

Takes structural barriers in society into account

Includes denial of equal dignity and rights of persons who differ from the majority

The proposed definition narrows the existing Council of Europe approach. Hidden intolerance — fertile ground for structural discrimination and latent hate crime — remains outside legal regulation.

Section 4

Conclusions and improvement directions

Normative regulation

Revise the definition of “intolerance”Remove the requirement of “open” manifestation; include hidden forms of bias and denial of equal dignity.

Clarity of the criminalisation thresholdFormulate criminal-law provisions with seriousness criteria aligned with Council of Europe approaches and clearly distinguish them from Article 10 ECHR protection.

Procedural capacityAssess time limits and institutional capacity of the administrative mechanism for compliance with Article 13 ECHR.

Institutional capacity

Methodology for assessing expressionsUse the six-factor Rabat Plan of Action approach plus ECRI recommendations as guidance for law enforcement.

Training for implementing authoritiesJudges, prosecutors, police and the Ombudsperson should be trained on ECtHR Article 10 standards and the distinction between protected expression and offences.

Systematic data collectionDisaggregated statistics on bias-motivated offences using the OSCE/ODIHR methodology.

Prevention and self-regulation

Media literacySupport programmes countering disinformation, dehumanising narratives and stereotypes while respecting pluralism.

Platform self-regulationTransparent moderation procedures aligned with ECRI standards and the DSA: transparency safeguards, appeal mechanisms and protection against over-removal.

Article 67 CC: include SOGIESCCrimes with homophobic / transphobic motives should be qualified as aggravating-motive offences, removing structural asymmetry.

Draft Law No. 13597:
What next?

Refinement of definitions · Clarification of the criminalisation threshold · Strengthening procedural capacity
Refinement of definitions · Clarification of criminalization threshold · Strengthening procedural capacity

lgbt.in.ua/en/ vk@lgbt.in.ua Draft Law No. 13597

Bureau “We Are” · Berezan, 2026 · Suggested citation: Kosenko V. Legal Analysis of Draft Law No. 13597. Berezan: NGO Bureau “We Are”, 2026.