A number of political and legal guidelines for the adoption and implementation of hate crime laws have been established by European multilateral institutions within 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.”
The European Union Framework Decision on Combating Racism and Xenophobia, adopted on April 20, 2007, is a binding political agreement that E.U. Member States must now implement in their national law. The Decision provides that racist and xenophobic motives are to be considered an aggravating factor in criminal offenses and that such motives may be taken into consideration by the courts in fixing the penalty.
Similarly, the European Commission against Racism and Intolerance (ECRI)—the anti-racism body within the Council of Europe (CoE)—has since 2002, with the adoption of its Policy Recommendation No. 7 on “national legislation to combat racism and racial discrimination,” encouraged the 47 CoE member states to adopt criminal laws under which racist motivation is treated as an aggravating circumstance. Most recently, in its newly-adopted Policy Recommendation No. 11 on combating racism and racial discrimination in policing, adopted on June 29, 2007, ECRI reiterates this recommendation, while focusing on the role of the police in encouraging better reporting of such incidents. The recommendation includes the following points:
- To ensure that the police thoroughly investigate racist offences, including by fully taking the racist motivation of ordinary offences into account.
- To establish and operate a system for recording and monitoring racist incidents, and the extent to which these incidents are brought before the prosecutors and are eventually qualified as racist offences.
- To encourage victims and witnesses of racist incidents to report such incidents.
Decisions of the European Court of Human Rights have articulated a duty on state authorities to investigate potential racial motives behind violent incidents and to bring perpetrators to trial. The court first made this reference in its 2005 Nachova and Others vs. Bulgaria decision, in which it noted that states “have the additional duty to take all reasonable steps to unmask any racial motive and to establish whether or not ethnic hatred and prejudice may have played a role in the events.”
Two other subsequent decisions in 2007—Angelova and Iliev vs. Bulgaria and Šečić vs. Croatia—made similar points in cases of racially-motivated violence. Both cases involved violence committed by private individuals, unlike the Nachova case, in which the police were the perpetrators.
- On May 31, 2007, in the case of Šečić vs. Croatia, the court delivered a judgment regarding the lack of proper investigation carried out by the Croatian authorities into a racially-motivated attack on a Romani man. The Court reiterated its position in the Nachova case “that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events.” The decision further stated that “treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.
- On July 26, 2007, the court issued a judgment in the case of Angelova and Iliev vs. Bulgaria, which involved the murder of two Romani men by a group of teenagers in 1996. In this case, there was ample evidence indicating that the murders were racially-motivated, yet for the next nine years, the investigating authorities failed to bring the perpetrators to justice. In its decision, the court found that it was “completely unacceptable that, while aware that the attack was incited by racial hatred, the authorities did not expeditiously complete the preliminary investigation against the assailants and bring them to trial.” It notes in this respect the widespread prejudices and violence against Roma during the relevant period and the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the authorities’ ability to protect them from the threat of racist violence.
The participating states of the OSCE have not established a specific obligation to enact hate crime offenses or aggravating circumstance provisions into their criminal law. They have, however, committed to consider increasing their efforts to ensure that national legislation provides equal and effective protection of the law to all persons and prohibits acts of intolerance and discrimination. The OSCE’s Office for Democratic Institutions and Human Rights is also preparing a set of practical guidelines on various aspects of developing, adopting and, implementing hate crime laws. The guidelines, which have been prepared during the course of 2007 and 2008 with input from human rights advocates, hate crime experts, and law enforcement and criminal justice professionals are expected to be released in late 2008.