III. Implementation of Criminal Law Provisions
Determining the extent to which the law is enforced in response to violent hate crime requires data collection. The most effective monitoring systems would not only register incidents and offences, but would also track them through the criminal justice system. However, few, if any, official data collection systems on violent hate crimes are coordinated with systems that track cases through the criminal courts. This deficit in tracking data poses obstacles to the assessment of the enforcement of hate crime laws, which must accordingly be undertaken using incomplete information and the review of particular cases. Statistics on the use of bias crime sentencing norms, including those convictions resulting in enhanced sentences, are also largely unavailable. The absence of statistical evidence on sentence enhancement in violent hate crimes leaves an enormous gap as to how these most serious crimes are dealt with in the justice system. Were those charged convicted? Were the sentences enhanced on the grounds of bias motivation? There is little public data to answer these questions. Notwithstanding these general deficiencies in official data collection, some government agencies responsible for law enforcement, as well as some specialized antidiscrimination bodies, have begun to take initial steps to track the implementation of hate crime laws. In Canada, for example, the government generally does not collect statistics on the use of article 718.2 (a)(i)—a penalty enhancement provision that includes bias motivations—although the Research and Statistics Division of the Department of Justice Canada is reportedly undertaking a study that will examine the use of these provisions. In a response to a questionnaire from Human Rights First, the Canadian government reported that “a preliminary review of published case law indicates that between 1996 and 2006 at least 48 cases have applied hate as an aggravating factor at sentencing.” In the Netherlands, a case tracking system has been developed to allow representatives of the police, prosecution services, and anti-discrimination bodies to track hate crimes from the time a complaint is filed with either the police or the local antidiscrimination bureau, through court processing. Such a tracking system was initially employed on a pilot basis in several regions around the country, and as of September 2008, 22 of the 25 police jurisdictions throughout the country were working with the tracking system. In the United Kingdom, the Crown Prosecution Service (CPS) in the past year took a number of important steps to enhance prosecution of hate crime cases. With regard to combating antisemitic hate crime, the CPS reported on its follow-up to the 2006 All-Party Parliamentary Inquiry into Antisemitism. That report highlighted a number of shortcomings, including the low number of hate crime prosecutions, and set out recommendations for action. The CPS reported in particular on several measures that it had taken, including the following:
Data was obtained from the Metropolitan Police Service and the Greater Manchester Police on antisemitic incidents reported in 2006/7. The progress of each incident was then tracked from initial report to the conclusion of the case in order to establish, wherever possible, the reasons behind the final outcome. The CPS also reported on its intention to develop an action plan for combating antisemitic hate crime to be developed in cooperation with the police and other criminal justice partners, as well as with representatives from the Jewish community.Moreover, the CPS sought to enhance its response to homophobic crime. In November 2007, it issued a report on Guidance on Prosecuting Cases of Homophobic and Transphobic Crime. The report reiterates the importance of a thorough investigation and prosecution of such cases, stating that:
Prejudice, discrimination or hatred of members of any part of our community based on their sexual orientation or gender identity have no place in a civilized society; any such prejudice, discrimination or hate that shows itself in the commission of crime must be thoroughly and properly investigated and firmly and rigorously prosecuted in the courts. A clear message must be sent so that those who commit such crimes realize that they will be dealt with firmly under the criminal law: the CPS has a vital role to play in delivering this aim, not only in terms of its own role but also in terms of advising its partners in the criminal justice system—the police, the courts, magistrates, judges and those in the voluntary sector—that this sort of crime must no longer be tolerated.”In Belgium, the Center for Equal Opportunities and Opposition to Racism (CEOOR), which is one of the few anti-discrimination bodies with a strong legal mandate to pursue individual hate crime cases through the courts, tracks such cases and their prosecutions. In its latest annual report, the CEOOR reported that 18 hate crime cases (up from 14 cases in 2006) involving manslaughter or bodily injury—were registered in the court system in 2007. In Sweden, the Office of the Ombudsman against Discrimination on the grounds of sexual orientation has monitored cases in which enhanced penalties have been handed down on the basis of chapter 29, section 2(7) of the Criminal Code for crimes committed with a homophobic motive. The office posts examples on its web site of such cases when it comes across relevent judgments through its own research or when a court sends them a copy of the judgment. All courts are obliged to send the ombudsman all judgments in which a bias motive has been considered or applied as an aggravating circumstance. In practice, however, courts rarely follow through on this obligation. In 2007, the Ombudsman reported on one case in which it raised questions as to the proper application of aggravating circumstances.
In a very briefly reasoned judgment, a district court of southern Sweden convicted a woman of assaulting another woman. She was charged with hitting her victim twice in the face with her open hand, pulling her hair and forcefully grabbing her left wrist causing her pain. The defendant was sentenced to pay a fine. The court found the assault to be a minor offence, referring to “the circumstances of the crime” and to “the material presented to the court,” however without revealing either what those circumstances were nor what that material consisted of.
The Ombudsman’s comment: Both the sentence and the reasoning are intriguing. The case had received some media coverage, according to which the defendant was the mother of the female victim, the reason for the assault being that she did not approve of the fact that her daughter was a lesbian. When her daughter refused to leave the home of her girlfriend to go back home with her mother, the mother beat her daughter up. According to Chapter 29 Section 2(7) of the Swedish Penal Code, when a motive for a crime has been the victim’s sexual orientation that is an aggravating circumstance, which should lead to a more severe sentence. In this case the reverse seems to have been the case.Although nongovernmental organizations in several countries play an important role in documenting and publicly reporting on hate crime cases, there are no systematic studies by NGOs on the disposition of such cases by police investigators, prosecutors, and the courts in any of the 56 OSCE countries. One group that attempts to track hate crime convictions is the SOVA Center for Information and Analysis. This leading nongovernmental monitor of hate crimes in the Russian Federation reported that the use of hate crime laws had decreased in 2007, following a steady increase from 2004 through 2006. The SOVA Center reported that there were nine guilty verdicts in hate crime charges in 2004, 17 in 2005, and 33 guilty verdicts (involving 109 defendants) in 2006. In 2007 however, there were only 24 guilty verdicts (involving 68 defendants) even though the number of incidents had increased dramatically. In the absence of more readily-available data, monitoring of individual cases provides some insight into the circumstances under which these provisions are used in practice. In Croatia, for example, where hate crime provisions were adopted in October 2006, a court on February 25, 2008, found Josip Situm guilty of a hate crime for his role in throwing petrol bombs at the participants of a gay pride parade in Croatia’s capital Zagreb in July 2007. He was sentenced to 14 months in jail and to mandatory psychiatric treatment. He is the first person convicted of a hate crime in the country since such crimes became offences under the country’s Penal Code in 2006. In Ukraine, the criminal code contains general provisions that permit a racist or other bias motive of the offender to be taken into account by the courts as an aggravating circumstance when sentencing. Article 67 of the criminal code is a general sentencing provision that identifies aggravating circumstances that give rise to more serious penalties, including “a motive of racial, national, or religious hatred” in the commission of crimes. A judge is not obliged however to consider these motivations in the sentencing and there are no reported cases in which a judge has considered such motivations in the sentencing. Article 161 criminalizes incitement to hatred, insults or discrimination based on nationality, race, or religion. Although this provision is more applicable to cases of hate speech and discrimination, it has also been applied in some cases involving violent hate crimes, and has served in those cases as a means for the state to recognize the bias motivations inherent in the crimes. In early 2008, there were three guilty verdicts handed down in hate crime cases in which violations under article 161 were among the charges. These were the first cases reported to apply Article 161 since the early 1990s.
- On April 17, 2008, the Darnitsky district court of Kyiv convicted four suspects in the murder of Kunon Mievi Godi in October 2006. Alexandr Shepitko was found guilty of first degree murder and incitement of ethnic hatred (article 115, part 2, and article 161) and was sentenced to eleven years in prison, while Yana Komlyuk was convicted solely of incitement of ethnic hatred, receiving a four and a half year sentence. The other two defendants avoided prosecution: one of them was a minor, and the other testified as a witness.
- On April 17, 2008, the Podolsky district court of Kyiv sentenced 18-year-old skinhead Vyacheslav Dmitruk to three years in prison for attacking a Japanese tourist on October 27, 2007. Dmitruk was also found guilty of incitement of ethnic hatred (article 161, part 2).
- On May 16, 2008, four youths were convicted in the April 2007 premeditated murder of a 31-year-old Korean citizen. The murder was described as exceptionally cruel in the police report, as the attackers beat the victim while screaming racial slurs and profanities at him. Each defendant was sentenced to thirteen years of imprisonment, as well as fines totaling one million hryvnias ($220,000) to be paid to the victim’s family.