2008 Hate Crime Survey: Framework Of Criminal Law
While governments have an obligation to combat all crime, the hate crime concept is a simple acknowledgement of the greater seriousness of crimes motivated by racial, religious, or other prejudice and hatred that harm whole communities. Hate crime legislation signals a society’s commitment to combat violent discrimination and gives force to this by providing for more severe penalties. In the last two years, the European Union has required and the Council of Europe has recommended that member states consider racist and xenophobic motives as an aggravating factor in violent criminal offenses, while the European Court of Human Rights has deplored “treating racially induced violence and brutality on an equal footing with cases that have no racist overtones.”
A growing number of the 56 countries in the OSCE are adopting criminal laws to expressly address violent hate crimes, largely in the form of penalty enhancement provisions. At present, there are over 30 countries in which legislation treats at least some bias-motivated violent crime as a separate crime or in which one or more forms of bias is regarded as an aggravating circumstance that can result in enhanced penalties.
However, 23 OSCE countries still have no express provisions defining bias as an aggravating circumstance in the commission of a range of violent crimes against persons. They are: Albania, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Luxembourg, Lithuania, Macedonia, Monaco, Montenegro, the Netherlands, Poland, San Marino, Serbia, Slovenia, Switzerland, and Turkey.
Data from government bodies, NGOs and media in several of these countries indicate that violent hate crimes are occurring, but criminal justice authorities are unable to treat them as the more serious crimes that they are due to the lack of a legislative basis to do so.
Of the 39 countries where legislation addresses biasmotivated violence as a separate crime or as an aggravating circumstance, those provisions all cover bias founded on race, ethnicity, and/or national origin, while 32 also cover religious bias. However, hate crime legislation extends to bias motivated by animus based on sexual orientation in only twelve countries and disability in only seven.
In 2007 and in the first half of 2008, there were legislative developments in several countries. In Latvia, new aggravating circumstances provisions addressing racist motivations entered into force. In Portugal, following criminal code amendments, bias based on sexual orientation can now be considered an aggravating factor in cases of homicide and assault. In the Russian Federation, also following amendments to its criminal code, aggravating circumstance provisions were extended to a range of new crimes. The biases were also expanded from “racial, national and religious hatred” to include “political” and “ideological” bias as well as bias against “a social group.” Observers have expressed concern that this latter development could be misused to punish political dissent.
In the United States, the latest effort to adopt amendments that would expand the scope of federal hate crime legislation, including to cover sexual orientation, gender identity and disability bias was unsuccessful, but new legislative initiatives are pending. In three other countries—Germany, Norway, and the United Kingdom (Scotland), draft criminal law amendments are at various stages of the legislative process.
Determining the extent to which the law is enforced in response to incidents of violent hate crime remains a challenge for all OSCE member states. Most states without laws on violent hate crime do not keep statistics on the law enforcement response to bias-motivated incidents of violence. Moreover, there is little official data from anywhere in the region with which to asses the effectiveness of the implementation of the laws that do exist on violent hate crimes. There is also a dearth of monitoring or other information on the implementation of these laws by specialized antidiscrimination bodies or NGOs. Nonetheless, NGO monitors in a few countries, including the Russian Federation and Ukraine, have reported on an ad hoc basis on prosecutions, and specialized agencies in Belgium and Sweden have also engaged in some monitoring of hate crime cases. New measures have been undertaken in the United Kingdom to enhance the criminal justice response to hate crime as well as to track hate crime cases from incident to prosecution. The Netherlands has also announced that a pilot project to track hate crime cases through the courts will be extended throughout the country.