1

Hate crime and hate motivated incidents in the OSCE Region- definitions, legal

approaches and good practice

Sofia, June 2011

2

Summary of presentation

OSCE commitments relating to hate crime Key legal approaches to combating hate

crimes OSCE activities in preventing and

responding to hate crime Example of a good practice prosecution

3

Hate crime in the OSCE context, a short

history: human rights and security 1990: Racist and other ‘violence’ recognised (Copenhagen)

2003: Term ‘Hate Crime’ first used in Ministerial Council (Maastricht) 2006: Brussels

collection point early warning function recommendations and assistance

2009: Athens Declaration key actions: Victim support and civil society legislation Capacity building for participating states (training and legislation) Appointment of National Point of Contact information and statistics Use of the internet in organising hate crime

4

ODIHR’s definition of hate crime

A criminal act committed with a bias motive

5

Key legal approaches to hate crime

6

International and Regional Framework

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

European Union Framework Decision on Racist and Xenophobic Crime (2008)

Case law of the European Court of Human Rights: Šečić v. Croatia

7

International Convention on the Elimination of All Forms of Racial Discrimination (CERD):

Article 4(a) Regards as an offence:

“all acts of violence or incitement to such acts against any race or group of persons of any colour or ethnic origin”

8

European Union Framework Decision on Racist and Xenophobic Crime (2008)

Article 4:“shall take the necessary measures to

ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.

9

Case law of the European Court of Human Rights: Šečić v. Croatia

Failure to treat “racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights”

10

Key legal approaches to hate crime

Specific criminal provisions that address hate crime/bias motiveSubstantive offencePenalty enhancements

Specific penalty enhancements General penalty enhancements

What makes it different?Proof of motive, not just intent

11

Substantive Offence A separate offence that includes

bias motive as an integral legal element

12

Substantive Offence: A separate offence that includes bias motive as an integral legal element

Article 162 (….) (2) Who applies violence against another or

damages his property because of his nationality, race, religion or his political convictions, shall be punished by imprisonment of up to four years and by fine from five thousand to ten thousand levs and by public censure.

or a group shall be punished by imprisonment of up to three years and by public reprobation.

(…)

13

Substantive Offence: A separate offence that includes bias motive as an integral legal element

Article 163 (suppl. - SG 27/09) (1) The persons who participate in a crowd for attack on groups of the

population, individual citizens or their property in connection with their national, ethnical or racial belonging shall be punished:

1. the instigators and leaders - by imprisonment of up to five years; 2. all the rest - by imprisonment of up to one year or corrective labour. (2) If the crowd or some of the participants are armed the punishment shall

be: 1. for the instigators and leaders - imprisonment of one to six years;2. for all the rest - imprisonment of up to three years. (3) If an attack is carried out and as a result of it a serious bodily harm or

death has followed the instigators and the leaders shall be punished by imprisonment of three to fifteen years and all the rest - by imprisonment of up to five years, unless they are subject to a more

14

Penalty Enhancements:Aggravating circumstances provisions

that increase a sentence based on bias motivation Specific penalty enhancement:

aggravating circumstances of specific crimes

General penalty enhancement: applicable to nearly all crimes in criminal code

15

Specific Penalty Enhancement: Applies increased sentences to specific criminal offenses French Penal Code ARTICLE 322-6 PROPERTY DAMAGE

Destroying, defacing or damaging property belonging to other persons by an explosive substance, a fire or any other means liable to create a danger to other persons is punished by ten years' imprisonment and a fine of €150,000.

ARTICLE 322-8 The offence defined by article 322-6 is punished by twenty years' criminal imprisonment and a fine of €150,000: (...) 3° where it is committed because of the owner or user of the property's membership or non-membership, true or supposed, of a given ethnic group, nation, race or religion. (...)

16

General Penalty Enhancement: Aggravating circumstances provisions that apply to wide range of crimes

Spanish Criminal Code Article 22.4: aggravating circumstances where crime committed on racist, anti-Semitic or other discriminatory grounds related to the victim’s ideology, religion or beliefs or his/ her belonging to an ethnic group, race, nation, gender or sexual orientation or his/her suffering from an illness or handicap.

17

Other sentencing provisions that could be applied to hate crimes

General sentencing laws or policies that can be applied to hate crime

Incitement to hatred laws with aggravating circumstances of violence

18

Other sentencing provisions that could be applied to hate crimes

Article 54(1) provides that judges are to take into account the motives and aggravating circumstances of a crime when making sentencing decisions.

19

Key aspects of hate crime legislation

Identifying protected characteristics

Defining motive

Association, affiliation and (mistake) in perception

20

Identifying protected characteristics

Fundamental principle of equality

Unchangeable or fundamental characteristics

Visible social and political context

Race, ethnicity, national origin, colour

Nationality Religion Mental/physical

disabilities Sexual orientation

21

Bulgaria

nationality, race, religion or political conviction

22

Arts 33-42 of Belgian’s Law of 10 May 2007:

“hatred against or contempt for, or hostility to a person on the grounds of his so-called race, color of skin, descent, national or ethnic origin, nationality, sex, sexual orientation, marital status, birth, age, wealth, belief of philosophy of life, current and future state of health, disability, language, political conviction, or physical or genetic characteristic or social origin”

23

Defining motive

Hostility model:Arts 33-42 of Belgian Law of 10 May 2007

motive is “hatred, contempt or hostility” based on protected characteristic

Discriminatory selection model:Art 162(2) of Bulgarian Criminal Code motive is “because of” the victim’s protected

characteristic

24

Association/affiliation or (mistakes in) perception

Section 28 of UK Crime and Disorder Act 1998 Defines “racially and religiously aggravated”

offences based on the victim’sMembership: defined to include association

ORPresumed membership: presumption by the

offender

25

ODIHR’s work on hate crime

Annual hate crime report Guide for legislators and NGOs

Prosecutors guide to be published Capacity building and training for law

enforcementTAHCLE memorandum of understanding with

the Bulgarian Ministry of Interior

26

Good practice in prosecution

27

Targeting a mosque in the UK

• In 2009, within a year of a mosque opening, a number of racist and religious incidents were directed towards it.

• Criminal damage to attacks against the Imam of the mosque and his family, including bacon being placed on the doors of their home.

• Believed that these attacks were linked to a nearby pub (bar), which had links with local football hooligans.

2828

Initial incidents• Local police received numerous

call outs to the mosque

• Lack of an identifiable suspect for the offences

• Confidence in the criminal justice system of the people who used the mosque was low

2929

Prosecuted incident• One evening people were worshipping at

the mosque and heard shouting. • One of the windows of the prayer hall was

broken. • Two men were witnessed kicking at the

door and shouting. • When challenged, the two men made off,

chased by some members of the mosque.• One of the men shouted racist insults.

3030

Police and prosecutor actions• Police arrived and arrested the

defendants• Case referred to prosecutors.• The following issues were considered

at an early stage: • previous incidents against the

mosque; • the effect on the wider community;• the likelihood of recurrence;• views on the safety of the mosque;• information from other agencies

3131

Police and prosecutor action cont’d

• Case was considered by very senior lawyers

• Defendant prosecuted, and pleaded guilty to a number of offences including:

• religiously aggravated criminal damage• racially aggravated threatening

behaviour• racially aggravated public order

3232

Sentencing hearing:

• A victim personal statement presented to the court, and referred to the ongoing problems that the mosque had been having.

• The defendant received an aggravated sentence.

• The court specifically directed that the defendant attend programmes to ensure that the consequences of his offending, and the racist and anti-Muslim aspects in particular were addressed.

• The victims in the case welcomed the outcome.

• Press statements: disseminated to the local press, in and out of courts prepared.

3333

• Licensing Officer • agreed to increase the monitoring of the

local pub and to remove its licence if the premises were found to be associated with local crime

• Police • agreed to increase visibility in the area,

especially during Friday prayers and on match days.

• Local authority• installed CCTV cameras in the

surrounding area• agreed to facilitate the purchase of

waste land from the local water board to use as parking for the mosque – thereby reducing the tensions with the wider community.

Multi-agency working

3434

Results

no further reported crimes (as of Autumn 2009) reported increased confidence in the local

criminal justice agencies among people attending the mosque.

35

Recommendations to pSs

• Robust hate crime legislation with enhanced penalties for bias-motivated offenses;

• Effective data collection procedures from police-to-prosecution-to sentencing;

• Trainings and capacity-building for all actors in the criminal justice system– law enforcement, prosecutors and judges—to secure appropriate convictions;

• Co-operation with civil society to increase confidence with victim groups and exploring ways to combat hate crime;

• Utilize ODIHR’s resources to improve responses to hate crimes

36

http://tandis.odihr.pl