Frequently asked questions
-* What is a hate crime?
- What is a racist crime?
- What is hate speech?
What is a hate crime?
A hate crime can be defined as:
(A) Any criminal offence, including offences against persons or property, where the victim, premises, or target of the offence are selected because of their real or perceived connection, attachment, affiliation, support, or membership of a group as defined in Part B.
(B) A group may be based upon a characteristic common to its members, such as real or perceived race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or other similar factor.
What is a racist crime?
NGOs and social scientists usually define racist violence as “racially motivated criminal acts against the person and/or property, and include public insults and defamation, threats, and incitement to racial violence, hatred or discrimination, etc.”
In an analysis of whether an incident can be perceived as a racially motivated crime, generally speaking the NGO best practice experience will use the perception of the victim as the guiding indicator. In 1999, an inquiry in the United Kingdom headed by Sir William MacPherson examined the original Metropolitan police investigation into the murder of black British teenager, Stephen Lawrence. The report states that “A racist incident is any incident which is perceived to be racist by the victim or any other person”.
What is hate speech?
Hate speech is any hostile form of speech towards a person or a community because of their race or ethnic origin, sexual orientation, gender, age, disability, religion or belief. Hate speech which actually incites to violence, discrimination or hostility should be prohibited by law and trigger possible legal proceedings. There is no common legal definition of it within EU Member States and the prohibited content differs among countries. Some jurisdictions penalise incitement to hate or insult. Others recognise hate speech when it denigrates a person’s dignity or honour. In some jurisdictions, the concept of hate speech is linked to the historical background of the country. For example in Germany, it covers Holocaust denial or Nazi glorification.
Resolving hate speech relies on long-term education, community work, professional regulations (media) or self-discipline (politicians).
What’s the existing EU legislation on racist crime?
The EU Framework Decision on combating racism and xenophobia aims to combat certain forms and expressions of racism and xenophobia through a common EU-wide criminal law. The Decision advocates that racist and xenophobic hate speech and hate crime must constitute a criminal offence in all member states and be punishable by effective, proportionate and dissuasive penalties.
The aim of the Framework Decision is to combat impunity and ensure consistency across EU Member States regarding what constitutes an offence and encourage a common approach to investigating, prosecuting and punishing racist offences.
The Framework Decision requires EU Member States to specifically address racist and xenophobic motivation in their criminal codes or, alternatively, such motivation may be taken into account by the courts in determining the applicable penalties.
The Decision sets the bar very low and observers state that it allows for too much diversity at a national level, leaving open options for how law makers within Member States develop their individual criminal codes. Furthermore, the Decision does not provide an accurate and consistent definition of racist activities and behaviours; and the transposition of the Decision at a national level has not resulted in the prohibition of all types of racially motivated crime. However, it has encouraged Member States to include racist motivation in their criminal codes which is an important first step.
In addition, in its Directive on the Rights of Victims, adopted in 2012, the EU has also provided for victims of hate crime to be offered an assessment of their potentially specific protection needs. Such need can occur both in investigation and court proceeding phases. All victims of hate crime, including victims of racist crimes, are covered by these provisions. The Directive also insists on training the relevant law enforcement, judiciary and victim support organisations’ staff accordingly.
What is the actual situation in EU member states?
Several Member States have particularly narrow legislative definitions as to what constitutes a hate crime or a racist crime. If definitions of racist crimes are too narrow, it is more likely that racist crimes are not recorded, investigated or prosecuted in a way that recognises the seriousness of these incidents or provides effective protection for ethnic and religious minorities.
The majority of EU Member States have implemented the EU Framework Decision requirement that makes incitement to violence or hatred punishable by criminal penalties of a maximum of at least between one and three years of imprisonment. The Decision applies to incitement targeting “a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin”.
However, the level of precision of the relevant national provisions on hate speech varies a great deal, both as regards the forms of bias covered, the nature of the sanctions and the practical aspects of the law’s enforcement. Despite these discrepancies, the Decision has ensured that all Member States have prohibitions on speech that constitutes an immediate threat or incitement to violence.