As Human Rights First discussed in more detail in its 2007 Hate Crime Report Card, 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 harms 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.
A growing number of the 56 countries in the OSCE are adopting criminal legislation to expressly address violent hate crimes. 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 in their criminal law defining bias as an aggravating circumstance in the commission of violent crimes against persons. These countries include: 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 the media in a number of these countries, such as Estonia, Germany, Greece, Hungary Ireland, Lithuania, the Netherlands, Poland, Serbia, Slovenia, Switzerland, and Turkey indicate that hate crimes are occurring, but criminal justice authorities lack a legislative basis to treat bias as an aggravating circumstance in the commission of these crimes.
Of the 39 countries where legislation addresses bias-motivated 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. Bias based on gender identity is explicitly mentioned in criminal law only in the United States—and even there only at the state level in 11 states and the District of Columbia. Legislation that extends to all forms of bias is both a better guarantee of the commitment to provide equal protection of the law to all as well as a practical incentive for criminal justice officials to track incidents, assess public policy, and develop preventative measures for all forms of bias-motivated violence.
A. Newly-adopted Criminal Law Provisions
There have been changes since 2006 in national legislation in three countries. Latvia adopted new provisions defining racist and other bias motivations as an aggravating circumstance. In Portugal, bias based on sexual orientation is now considered an aggravating circumstance in some violent crimes. In the Russian Federation, new legislation has expanded the range of bias motivation and crimes to which preexisting aggravating circumstances provisions could be applied.
In Latvia, on October 12, 2006, the Latvian Parliament amended section 48 of the criminal code dealing with aggravating circumstances in the commission of a crime. According to the newly amended part 14 of that section, a “racist motivation” now constitutes an aggravating circumstance. The amendment entered into force in July 2007.
In Portugal, the criminal code before the recent amendments provided that incidents of homicide, severe assault, and assault can be considered “aggravated” and subject to more severe punishments when those crimes are motivated by racial, religious, or political hatred. As a result of amendments in September 2007, bias based on sexual orientation can now similarly be considered an aggravating factor in those same crimes.
In the Russian Federation, several parallel legislative initiatives in 2007 resulted in the adoption of new and amended criminal law provisions that address violent hate crimes. On May 10, 2007, bias motivations were added to article 214 of the criminal code dealing with vandalism. This article was amended to include an enhanced punishment when the act of vandalism is committed “with a motive of ideological, political, racial, national, or religious hatred.” Whereas bias motives based on “racial, national, or religious hatred” had already been taken into account in criminal law, this amendment introduced for the first time the notions of “ideological” and “political” hatred as aggravating circumstances in the commission of a criminal offense. Article 244 was also amended so that an act of desecration motivated by bias can be punished by a maximum sentence of five years (up from three years previously).
On August 10, 2007, amendments to anti-extremist legislation were also passed, resulting in a number of changes to provisions addressing bias-motivated violence. These amendments expanded the concept of bias motivations in terms similar to those of the amended article 214. Whereas Russian law previously addressed bias motivations based on “national, racial and religious hatred,” the amendments expanded this definition to include motivations based on “ideological, political, racial, national, and religious hatred and enmity or hatred and enmity toward some social group.”
Similar changes regarding bias motivations were introduced to article 63 on general aggravating circumstances for all crimes, as well as to six other articles of the criminal code dealing with specific offenses where bias motivations provided for sentence enhancement. Bias motivations as aggravating circumstances in the same terms were also extended to five new articles of the criminal code.
Some observers have argued that these provisions will now allow prosecutors to seek enhanced penalties in cases of neo-Nazi violence against anti-fascists and other youth subcultures (which might now be prosecuted as “ideological” hate crimes). Others have raised concerns, however, that the new range of “hatred” is too broad, not clearly defined, and opens the way to arbitrary application of the law in order to punish political dissent.
B. Efforts to Adopt New Hate Crime Provisions
In Germany, while the courts have the right under paragraph 2 of section 46 (Principles for determining punishment) of the Criminal Code to consider the motives of the perpetrator in determining the sentence, there is no express mention of racist or other bias motivations. Lower courts, particularly in the eastern German states, often appear to be reluctant to consider the bias motivations in assaults and other acts of violence by right-wing extremists.
Two eastern German states, Brandenburg and Saxony-Anhalt, which have been experiencing a steady rise in the number of crimes with an obvious right-wing extremist background, submitted new draft legislation to the Parliament’s upper chamber, the Bundesrat, at the end of 2007. The current draft seeks to amend, among other provisions, section 46 paragraph 2 such that crimes motivated by “the political attitude, nationality, ethnicity, race, color of skin, religion, philosophical conviction, origin, personal appearance, disability or sexual orientation of the victim” would lead to enhanced penalties.
In Norway, provisions on aggravating circumstances already exist under Section 232 of the Criminal Code and extend to felonies against another person’s life, body, and health in which the offence has been committed with a racist motive. Proposed amendments to the Criminal Code would introduce general aggravating circumstance provisions that would allow for enhanced penalties in all crimes at the sentencing stage. The provisions would also broaden the forms of bias to be taken into account by allowing for penalty enhancements in cases in which the crime was motivated by bias based on one’s “religion or philosophy, skin color, national or ethnic origin, sexual orientation, disability.” Some observers have reported that the new provisions could be adopted in 2010.
In the United Kingdom, in Scotland, a bill was introduced on May 19, 2008 that would extend hate crime legislation to cover crimes motivated by malice or ill-will based on the victim’s actual or presumed sexual orientation, transgender identity, or disability. The Policy Memorandum that accompanied the bill—which was introduced on the basis of recommendations from a Working Group on Hate Crimes established several years earlier by the government—noted that the Cabinet Secretary for Justice has indicated the Scottish government’s support for legislation in this area.
Hate crime legislation in Scotland currently applies to offenses motivated only by racial or religious prejudice. On the contrary, in England and Wales and in Northern Ireland, the legislation already extends to sexual orientation and disability.
The bill in Scotland also aims to enhance the system of data collection in hate crime cases. The supporting memorandum states that:
The provisions will also allow the existence of the aggravations to be recorded at all levels in the criminal justice system from the initial recording of a crime through to the charging stage, prosecution, conviction and eventual sentence. Upon conviction, where the sentence is different as a result of the aggravation, the court will be required to state and record the extent of, and reasons for, that difference. This will enable Government and practitioners to build up an accurate picture of the extent of these particular hate crimes in Scotland and inform policy accordingly.
In the United States, efforts to adopt the Local Law Enforcement Hate Crime Prevention Act of 2007 (LLEHCPA) were unsuccessful. The LLEHCPA, a federal measure that would have expanded the scope of national hate crime legislation, was passed by both houses of Congress, but was ultimately withdrawn in the face of a promised veto by President George W. Bush. The proposed law would have eliminated the requirement that prosecutors must demonstrate that a victim was targeted expressly because of that person’s participation in one of the six federally protected categories, one of the current requirements for application of federal law to a violent hate crime. The bill would also have extended the bias categories under federal protection to include gender identity, sexual orientation, and disability.
