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International Legal Framework for Hate Crimes: Which Law for the ‘New’ Countries?

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Critical Perspectives on Hate Crime

Part of the book series: Palgrave Hate Studies ((PAHS))

Abstract

Criminalising hate is becoming an increasingly internationally accepted framework for dealing with targeted violence. Some intergovernmental organisations (OSCE, EU, CoE) have adopted and promoted ahate crime model and play a key role in its global dissemination. The OSCE has played an important part in developing this international hate crime framework. Fifty-seven OSCE participating States have committed to address hate crimes comprehensively, including through specific laws, collecting and making public data on hate crimes in sufficient detail, improving investigation and prosecution of hate crimes through training, or cooperation with civil society.

The author of this chapter has worked for ODIHR as a Hate Crime Officer since 2013. During that period, he has been involved in ODIHR’s hate crime reporting, training and policy work on a national level. The views and analysis in this paper do not necessarily reflect those of the OSCE Office for Democratic Institutions and Human Rights.

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Notes

  1. 1.

    For ODIHR’s training programme for police, visit http://www.osce.org/odihr/tahcle; for training for judiciary, go to http://www.osce.org/odihr/pahct.

  2. 2.

    For more information, see here: http://hatecrime.osce.org/what-odihr-doing.

  3. 3.

    This paper focuses on the legal framework applicable in the OSCE region only.

  4. 4.

    Country monitoring by Council of Europe’s Commissioner for Human Rights here: http://www.coe.int/en/web/commissioner/country-monitoring; Council of Europe ECRI’s country visits reports here: http://www.coe.int/t/dghl/monitoring/ecri/activities/countrybycountry_en.asp; CERD Committee Concluding Observations.

  5. 5.

    For example Council of Europe ECRI’s country visit reports are an opportunity to assess the organisation’s own interpretation of its General Policy Recommendations dealing with hate crime and/or hate speech.

  6. 6.

    This concept is embedded in the Guide (OSCE/ODIHR 2009) as well as communicated to states through ODIHR’s training activities and through its Opinions on draft hate crime laws.

  7. 7.

    ODIHR’s annually published online data on hate crime situation in the OSCE region builds on information and data officially submitted by States. This information is contextualised by reports received from civil society and international organisations. See http://hatecrime.osce.org/ for more information on ODIHR’s mandate and reporting on hate crime.

  8. 8.

    See preambular paragraphs (7)–(10) of EU Framework Decision on Combating Racism and Xenophobia by means of criminal law, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008F0913&from=EN.

  9. 9.

    See the discussion on crimes of opportunity in Making hate crimes visible in the EU, p. 19, http://fra.europa.eu/sites/default/files/fra-2012_hate-crime.pdf.

  10. 10.

    In particular Angelova and Iliev v. Bulgaria, Secic v. Croatia, Nacheva v. Bulgaria, Stoica v. Romania, Milanovic v. Serbia, Identoba and others v. Georgia, Balazs v. Hungary, Dordavic v. Croatia.

  11. 11.

    Thus expressing the enhanced harm that the base offence (e.g. murder, physical assault) causes when committed with a bias motive. For example racially or religiously aggravated assault in the UK (section 28 of the Crime and Disorder Act 1998 of England and Wales).

  12. 12.

    An example could be a Czech provision on “violence against a group of inhabitants or against an individual ” (article 352, Czech Criminal Code). Similar crimes exist in Polish (article 119) or Slovak (section 359) Criminal Code.

  13. 13.

    For example, in Finland, grounds for increasing the punishment for a crime includes when “the crime has been motivated by race, colour, national or ethnic origin, religion or belief, sexual orientation or disability or by other comparable ground” (chapter 6, section 5, para 4 of the Criminal Code of Finland).

  14. 14.

    Article 121, section 1 and 2, Criminal Code of Ukraine.

  15. 15.

    And a number of European states are able to identify, investigate and prosecute hate crimes even without any specific provision in their criminal code (e.g. Ireland or the Netherlands).

  16. 16.

    In its legal reviews of draft laws amending national hate crime provisions, conducted on request from participating States and available at www.legislationline.org, ODIHR has made suggestions to enact all three available types of hate crime laws.

  17. 17.

    In the UK, on the other hand, Framework Decision has been included in the 2014 opt-out and is no longer binding on the country.

  18. 18.

    FRA in their typology of hate crime laws ignores the third type – substantive offences; see FRA’s publication, Making Hate Crimes Visible in the European Union: Acknowledging victims’ rights, p. 27. Available at http://fra.europa.eu/sites/default/files/fra-2012_hate-crime.pdf.

  19. 19.

    See for example a concluding observation on Belarus from 23 September 2013. Here: http://www.ecoi.net/file_upload/1930_1388738531_g1347014.pdf.

  20. 20.

    General Policy Recommendation No. 7 on National Legislation to Combat Racism and Racial Discrimination; Para 21; Paragraphs 18 and 19 contain list of speech offences, which should be criminalised according to ECRI; GPR 7 is available at: http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri03-8%20recommendation%20nr%207.pdf. The recommendation in the GPR 7 to criminalise the extensive list of speech offences has been, as of 8 December 2015, amended by a new GPR 15, specifically dealing with hate speech, and which seems to take a more restrictive approach to criminalising speech. GPR 15 is available here. https://www.coe.int/t/dghl/monitoring/ecri/activities/GPR/EN/Recommendation_N15/REC-15-2016-015-ENG.pdf.

  21. 21.

    An ‘advanced’ version of the GPE type of provision does not only mandate court’s ‘consideration’ of this aggravating circumstance when determining the sentence, but directly instructs the court on how the sentence should be changed when such circumstances were established (e.g. art. 81A, Greek Criminal Code). This is a preferable approach because the ‘negotiation’ of mitigating and aggravating circumstances is then not possible. An even better option is when the provision is formulated to enable an increase of sentence beyond the statutory limit. The advantage is not only in a guaranteed stricter sentence, but also in the fact that due process principles require the suspect to be informed of such possibility and therefore the prosecutor should be required to invoke such provision and all relevant arguments early – in the charging decision. Some of the disadvantages of this provision type are thus ‘neutralised’.

  22. 22.

    Yet another approach – eliminating the ‘disadvantages’ of balancing mitigating vs. aggravating circumstances – has been coined in the UK, where the Courts should first take into account all other mitigating and aggravating factors, and arrive at a resulting sentence for a racially non-aggravated offence, and only then add racial (or other bias) aggravation. This ensures that the sentence is actually increased in all cases. See for example the Crown Prosecution Service Guidance on homophobic and transphobic hate crime. http://www.cps.gov.uk/legal/h_to_k/homophobic_and_transphobic_hate_crime/#a15.

  23. 23.

    Within the GPE provision, the bias motivation is usually considered a ‘personal aggravation’, or, in continental law terminology, one of ‘subjective elements’ of the offence; this is to be distinguished from a crime aggravated by bias (in SO or SPE), where aggravation is part of the ‘objective’ aspect of the crime.

  24. 24.

    OSCE States report their current laws and amendments to ODIHR as part of the annual hate crime reporting process. The links to relevant provisions can be accessed through country pages on http://hatecrime.osce.org/, the full database of hate crime laws is available at another ODIHR’s website at http://www.legislationline.org/topics/subtopic/79/topic/4.

  25. 25.

    OSCE States report police-recorded hate crimes, and also information on prosecuted and sentenced cases. In reports from countries providing these statistics, only the police data usually captures the targeted group, whereas most statistics coming from the judiciary come from the general crime statistics, and as such show the use of certain provisions in the Criminal Code, but not the breakdown by targeted group.

  26. 26.

    Five other countries have no such law (although some of them might have hate speech provisions, protecting certain groups); and one country reported no information to ODIHR.

  27. 27.

    A few disclaimers about these numbers: National police-recorded statistics of hate crimes can often include other types of incidents (such as hate speech, discrimination cases). It is sometimes the case that only some but not all types of base offences can be captured in the police recording system. These can be interpreted as symptoms of the transition to hate crimes, and warrant caution when interpreting the data available, in particular limited comparability thereof.

  28. 28.

    In the context of this chapter, it is essential to note that some of the states, which report detailed statistics on hate crimes, do not have any hate crime law at all – Ireland being one of such examples.

  29. 29.

    http://hatecrime.osce.org/.

  30. 30.

    Croatia, with its cross-governmental Protocol on monitoring hate crimes, is a good example, among the new States, of such comprehensive approach to addressing the issue.

  31. 31.

    http://hatecrime.osce.org/ireland.

  32. 32.

    For 2014, 171 hate incidents were reported to ODIHR by NGOs and independent monitors in Ireland.

  33. 33.

    Article 317 of the Serbian Criminal Code.

  34. 34.

    Article 54a of the Serbian Criminal Code.

  35. 35.

    Art. 256 para 1, Criminal Code of Poland.

  36. 36.

    See, for example, Art. 131 (12) of the Bulgarian Criminal Code; or Art. 296 of Criminal Code of Ukraine.

  37. 37.

    Art. 261 bis, Criminal Code of Switzerland.

  38. 38.

    Art. 67(1)(3) of the Criminal Code of Ukraine.

  39. 39.

    CERD Concluding Observation, op. cit., supra note 38.

  40. 40.

    It does exist, but only in countries which have put or are in process of putting in place a police monitoring system independent of the law – approach recommended by ODIHR in its national assistance programmes, but still quite rare to see.

  41. 41.

    These include homicide, physical assaults, damage and destruction of property, arson, theft, robbery, burglary, threats and threatening behaviour, vandalism, and grave desecration.

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Authors and Affiliations

  1. OSCE Office for Democratic Institutions and Human Rights (ODIHR), Warsaw, Poland

    Aleš Gião Hanek

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  1. Aleš Gião Hanek
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Correspondence to Aleš Gião Hanek .

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Editors and Affiliations

  1. Department of Sociology, University of Limerick, Limerick, Ireland

    Amanda Haynes

  2. School of Law, University of Limerick, Limerick, Ireland

    Jennifer Schweppe

  3. Department of Applied Social Studies, Maynooth University , Maynooth, Ireland

    Seamus Taylor

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Gião Hanek, A. (2017). International Legal Framework for Hate Crimes: Which Law for the ‘New’ Countries?. In: Haynes, A., Schweppe, J., Taylor, S. (eds) Critical Perspectives on Hate Crime. Palgrave Hate Studies. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-52667-0_24

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  • DOI: https://doi.org/10.1057/978-1-137-52667-0_24

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