Hate crime regulation in the criminal law: OSCE/ODIHR s perspective. Riga, December 2013 Joanna Perry

Transcription

1 Hate crime regulation in the criminal law: OSCE/ODIHR s perspective Riga, December 2013 Joanna Perry Joanna.Perry@odihr.pl 1

2 Overview of presentation OSCE commitments International legislative approaches Implementation 2

3 OSCE ministerial commitments Longstanding and comprehensive commitments, from1991 Comprehensive: Law Data collection Police and prosecution training Victim support 3

4 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 4

5 Key questions for hate crime legislators Identifying protected characteristics Defining motive Association, affiliation and (mistake) in perception 5

6 Identifying protected characteristics Unchangeable or fundamental characteristics Race, ethnicity, national origin, colour Nationality Religion Mental/physical disabilities Sexual orientation Gender Other 6

7 Arts 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 7

8 Defining motive Hostility model: Arts 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 8

9 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 9

10 Mixed Motives Belgium Art. 377 bis. In the cases stipulated in this chapter [INDESCENT ASSUALT AND RAPE], the minimum punishments stipulated in these articles shall be doubled in the case of a prison sentence, and increased by two years in case incarceration when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of 10

11 What is a hate crime law? Specific criminal provisions that address hate crime/bias motive Substantive offence Penalty enhancements Specific penalty enhancements General penalty enhancements Other policy provisions 11

12 Substantive Offence A separate offence that includes bias motive as an integral legal element 12

13 Substantive Offence: A separate offence that includes bias motive as an integral legal element Art 196(2) Czech Republic Criminal Code A person who uses violence against a group of inhabitants or an individual, or threatens them with bodily harm or damage to a large extent on the grounds of their political conviction, nationality, race, belief or absence of a belief, shall be punished by a custodial sentence of up to three years. 13

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 14

15 Specific Penalty Enhancement: Applies increased sentences to specific criminal offenses French Penal Code ARTICLE 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 The offence defined by article 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. (...) 15

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. 16

17 Other sentencing provisions that could be applied to hate crimes General sentencing laws or policies that can be applied to hate crime 17

18 Other sentencing provisions that could be applied to hate crimes Netherlands Prosecution service policy: To seek a 50% increase in sentence for the commission of a crime that is committed out of bias motivation based on grounds mentioned in general discrimination provisions, which include race, religion or belief, gender, sexual orientation or physical, psychological or mental disability Office of the Public Prosecutor (Aanwijzing Discriminatie 2007A010, amended in 2009). 18

19 Training for police and prosecutors TAHCLE PAHCT Implementation Policy and guidance for police and prosecutors: how to make hate crime laws a reality and implemented in court? UK: raft of prosecution policies US: police training manual Croatia: cross criminal justice working group 19

20 Thank you 20