Sofia, June 2011

1. Hate crime and hate motivated incidents in the OSCE Region- definitions, legal approaches and good practice Sofia, June 2011

2. Summary of presentation • OSCE commitments relating to hate crime • Key legal approaches to combating hate crimes • OSCE activities in preventing and responding to hate crime • Example of a good practice prosecution

3. Hate crime in the OSCE context, a short history: human rights and security 1990: Racist and other ‘violence’ recognised (Copenhagen) 2003: Term ‘Hate Crime’ first used in Ministerial Council (Maastricht) 2006: Brussels collection point early warning function recommendations and assistance 2009: Athens Declaration key actions: Victim support and civil society legislation Capacity building for participating states (training and legislation) Appointment of National Point of Contact information and statistics Use of the internet in organising hate crime

4. ODIHR’s definition of hate crime • A criminal act committed with a bias motive

5. Key legal approaches to hate crime

6. International and Regional Framework International Convention on the Elimination of All Forms of Racial Discrimination (CERD) European Union Framework Decision on Racist and Xenophobic Crime (2008) Case law of the European Court of Human Rights: Šečićv. Croatia

7. International Convention on the Elimination of All Forms of Racial Discrimination (CERD): Article 4(a) Regards as an offence: “all acts of violence or incitement to such acts against any race or group of persons of any colour or ethnic origin”

8. European Union Framework Decision on Racist and Xenophobic Crime (2008) Article 4: “shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivationmay be taken into consideration by the courts in the determination of the penalties.

9. Case law of the European Court of Human Rights: Šečićv. Croatia Failure to treat “racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights”

10. Key legal approaches to hate crime • Specific criminal provisions that address hate crime/bias motive • Substantive offence • Penalty enhancements • Specific penalty enhancements • General penalty enhancements • What makes it different? • Proof of motive, not just intent

11. Substantive Offence A separate offence that includes bias motive as an integral legal element

12. Substantive Offence: A separate offence that includes bias motive as an integral legal element • Article 162 • (….) • (2) Who applies violence against another or damages his property because of his nationality, race, religion or his political convictions, shall be punished by imprisonment of up to four years and by fine from five thousand to ten thousand levs and by public censure. • or a group shall be punished by imprisonment of up to three years and by public reprobation. • (…)

13. Substantive Offence: A separate offence that includes bias motive as an integral legal element Article 163 (suppl. - SG 27/09) • (1) The persons who participate in a crowd for attack on groups of the population, individual citizens or their propertyin connection with their national, ethnical or racial belonging shall be punished: 1. the instigators and leaders - by imprisonment of up to five years; 2. all the rest - by imprisonment of up to one year or corrective labour. • (2) If the crowd or some of the participants are armed the punishment shall be: 1. for the instigators and leaders - imprisonment of one to six years; 2. for all the rest - imprisonment of up to three years. • (3) If an attack is carried out and as a result of it a serious bodily harm or death has followed the instigators and the leaders shall be punished by imprisonment of three to fifteen years and all the rest - by imprisonment of up to five years, unless they are subject to a more

14. Penalty Enhancements: Aggravating circumstances provisions that increase a sentence based on bias motivation • Specific penalty enhancement: aggravating circumstances of specific crimes • General penalty enhancement: applicable to nearly all crimes in criminal code

15. Specific Penalty Enhancement: Applies increased sentences to specific criminal offenses French Penal Code • ARTICLE 322-6 PROPERTY DAMAGE Destroying, defacing or damaging property belonging to other persons by an explosive substance, a fire or any other means liable to create a danger to other persons is punished by ten years' imprisonment and a fine of €150,000. • ARTICLE 322-8The offence defined by article 322-6 is punished by twenty years' criminal imprisonment and a fine of €150,000: (...) 3° where it is committed because of the owner or user of the property's membership or non-membership, true or supposed, of a given ethnic group, nation, race or religion. (...)

16. General Penalty Enhancement: Aggravating circumstances provisions that apply to wide range of crimes Spanish Criminal Code Article 22.4:aggravating circumstances where crime committed on racist, anti-Semitic or other discriminatory grounds related to the victim’s ideology, religion or beliefs or his/ her belonging to an ethnic group, race, nation, gender or sexual orientation or his/her suffering from an illness or handicap.

17. Other sentencing provisions that could be applied to hate crimes • General sentencing laws or policies that can be applied to hate crime • Incitement to hatred laws with aggravating circumstances of violence

18. Other sentencing provisions that could be applied to hate crimes Article 54(1) provides that judges are to take into account the motives and aggravating circumstances of a crime when making sentencing decisions.

19. Key aspects of hate crime legislation • Identifying protected characteristics • Defining motive • Association, affiliation and (mistake) in perception

20. Fundamental principle of equality Unchangeable or fundamental characteristics Visible social and political context Race, ethnicity, national origin, colour Nationality Religion Mental/physical disabilities Sexual orientation Identifying protected characteristics

21. Bulgaria • nationality, race, religion or political conviction

22. Arts 33-42 of Belgian’s Law of 10 May 2007: “hatred against or contempt for, or hostility to a person on the grounds of his so-called race, color of skin, descent, national or ethnic origin, nationality, sex, sexual orientation, marital status, birth, age, wealth, belief of philosophy of life, current and future state of health, disability, language, political conviction, or physical or genetic characteristic or social origin”

23. Defining motive • Hostility model: • Arts 33-42 of Belgian Law of 10 May 2007 motive is “hatred, contempt or hostility” based on protected characteristic • Discriminatory selection model: • Art 162(2) of Bulgarian Criminal Code motive is “because of” the victim’s protected characteristic

24. Association/affiliation or (mistakes in) perception Section 28 of UK Crime and Disorder Act 1998 • Defines “racially and religiously aggravated” offences based on the victim’s • Membership: defined to include association OR • Presumed membership: presumption by the offender

25. ODIHR’s work on hate crime • Annual hate crime report • Guide for legislators and NGOs • Prosecutors guide to be published • Capacity building and training for law enforcement • TAHCLE memorandum of understanding with the Bulgarian Ministry of Interior

26. Good practice in prosecution

27. Targeting a mosque in the UK In 2009, within a year of a mosque opening, a number of racist and religious incidents were directed towards it. Criminal damage to attacks against the Imam of the mosque and his family, including bacon being placed on the doors of their home. Believed that these attacks were linked to a nearby pub (bar), which had links with local football hooligans.

28. Initial incidents • Local police received numerous call outs to the mosque • Lack of an identifiable suspect for the offences • Confidence in the criminal justice system of the people who used the mosque was low 28

29. Prosecuted incident One evening people were worshipping at the mosque and heard shouting. One of the windows of the prayer hall was broken. Two men were witnessed kicking at the door and shouting. When challenged, the two men made off, chased by some members of the mosque. One of the men shouted racist insults. 29

30. Police and prosecutor actions Police arrived and arrested the defendants Case referred to prosecutors. The following issues were considered at an early stage: previous incidents against the mosque; the effect on the wider community; the likelihood of recurrence; views on the safety of the mosque; information from other agencies 30

31. Police and prosecutor action cont’d Case was considered by very senior lawyers Defendant prosecuted, and pleaded guilty to a number of offences including: religiously aggravated criminal damage racially aggravated threatening behaviour racially aggravated public order 31

32. Sentencing hearing: A victim personal statement presented to the court, and referred to the ongoing problems that the mosque had been having. The defendant received an aggravated sentence. The court specifically directed that the defendant attend programmes to ensure that the consequences of his offending, and the racist and anti-Muslim aspects in particular were addressed. The victims in the case welcomed the outcome. Press statements: disseminated to the local press, in and out of courts prepared. 32

33. Licensing Officer agreed to increase the monitoring of the local pub and to remove its licence if the premises were found to be associated with local crime Police agreed to increase visibility in the area, especially during Friday prayers and on match days. Local authority installed CCTV cameras in the surrounding area agreed to facilitate the purchase of waste land from the local water board to use as parking for the mosque – thereby reducing the tensions with the wider community. Multi-agency working 33

34. Results no further reported crimes (as of Autumn 2009) reported increased confidence in the local criminal justice agencies among people attending the mosque. 34

35. Recommendations to pSs • Robust hate crime legislation with enhanced penalties for bias-motivated offenses; • Effective data collection procedures from police-to-prosecution-to sentencing; • Trainings and capacity-building for all actors in the criminal justice system– law enforcement, prosecutors and judges—to secure appropriate convictions; • Co-operation with civil society to increase confidence with victim groups and exploring ways to combat hate crime; • Utilize ODIHR’s resources to improve responses to hate crimes

36. http://tandis.odihr.pl